Intellectual Property Law Commons^™

Grading Patent Remedies: Dependent Claims And Relative Infringement, Daniel Harris Brean

Daniel Harris Brean

Bazaar Transnational Drafting: An Analysis Of The Gnu Public License Version 3 Revision Process, Christopher M. Dileo

San Diego International Law Journal

This Article will step through the drafting process and compare bazaar and cathedral modes of drafting to determine if a bazaar mode can efficiently produce a legal instrument that crosses legal regimes. As the title suggests, the bazaar process analysis case will be the GNU General Public License version 3 (the GPLv3) Revision Process. A comparison of the advantages and disadvantages of the bazaar mode of drafting to the cathedral mode of drafting will hopefully demonstrate the overall value of a transnational bazaar process like the GPLv3 Revision Process.

Open Access At Mit And Beyond: A White Paper Of The Mit Ad Hoc Task Force On Open Access To Mit’S Research, Katharine Dunn, Hal Abelson, Chris Bourg, Ellen Finnie

Copyright, Fair Use, Scholarly Communication, etc.

MIT researchers, students, and staff have long valued and put into action MIT’s mission to generate and disseminate knowledge by openly and freely sharing research and educational materials. Indeed, the Institute has been at the forefront of the sharing culture: MIT launched OpenCourseWare (OCW), a free webbased publication of virtually all MIT course content in 2001; in 2002 released DSpace, an open-source platform for managing research materials and publications co-created by MIT Libraries staff; and adopted the first campus-wide faculty open access (OA) policy in the US in 2009.

Convening an open access task force was one of the ...

"Distinctive Sounds": A Critique Of The Transformative Fair Use Test In Practice And The Need For A New Music Fair Use Exception, Kristin Bateman

Seattle University Law Review

The Constitution gives Congress the power “[t]o promote the Progress of Science and useful Arts,” resulting in our modern regime of patent, trademark, and copyright law. Over time, however, this artistic tradition of copying has collided with more modern concepts of intellectual property rights, especially copyright protections. The advent of the internet as well as state-of-the-art recording and mixing software has vastly increased opportunities to copy, remix, sample, parody, and otherwise alter the work of other artists, particularly musicians. More than twenty years after Campbell v. Acuff-Rose Music, transformative fair use has become the predominant test courts have used ...

A Prescription For Biopharmaceutical Patents: A Cure For Inter Partes Review Ailments, Alex A. Jurisch

Seattle University Law Review

The patent system in the United States was forever changed with the introduction of the Leahy-Smith America Invents Act (AIA) in September of 2011. The AIA brought sweeping changes to American patent law in order to align the U.S. with much of the rest of the world by changing the invention priority from a “first to invent” to a “first to file” system. The first section of this note will provide a brief overview of the substance of inter partes reviews and some of the most critical negatives that have become apparent since 2013. The second section of this ...

The Rent’S Too High: Self-Archive For Fair Online Publication Costs, Robert Thibault, Amanda Macpherson, Stevan Harnad, Amir Raz

Copyright, Fair Use, Scholarly Communication, etc.

The main contributors of scientific knowledge—researchers—generally aim to disseminate their findings far and wide. And yet, publishing companies have largely kept these findings behind a paywall. With digital publication technology markedly reducing cost, this enduring wall seems disproportionate and unjustified; moreover, it has sparked a topical exchange concerning how to modernize academic publishing. This discussion, however, seems to focus on how to compensate major publishers for providing open access through a pay-to-publish model, in turn transferring financial burdens from libraries to authors and their funders. Large publishing companies, including Elsevier, Springer Nature, Wiley, PLoS, and Frontiers, continue to ...

Intellectual Property, Income Inequality, And Societal Interconnectivity In The United States: Social Calculus And The Historical Distribution Of Wealth, Brenda Reddix-Smalls

North Carolina Central University Science & Intellectual Property Law Review

Scant attention has been paid to the historical trajectory and effect of the United States’ intellectual property regimes—patenting, copyrighting, and trademarking—as devices which implement racialized property grants and further income and social inequality. This article focuses on just that and argues that the United States Constitution was designed as a property-based and economically-driven social compact which identifies intellectual property interests through a racialized lens. From this view, it is further argued that the Intellectual Property Clause, which itself was designed to incentivize invention and innovation, protected the racialized property interests of the governing elites of the newly established ...

Indigenous Appropriation And Protections Provided By Intellectual Property Law, Kadeidra Baker

North Carolina Central University Science & Intellectual Property Law Review

No abstract provided.

Applying The Statutory Cover License To Mashup Covers And Medleys, Paulina Lopez

North Carolina Central University Science & Intellectual Property Law Review

No abstract provided.

Nommo: Understanding The Power Of Words, A Critique Of Matal V. Tam, Malik C. Edwards

North Carolina Central University Science & Intellectual Property Law Review

No abstract provided.

Update On Antitrust And Pay-For-Delay: Evaluating “No Authorized Generic” And “Exclusive License” Provisions In Hatch-Waxman Settlements, Saami Zain

San Diego Law Review

In Federal Trade Commission v. Actavis, the United States Supreme Court held that a patent litigation settlement where a branded drug company pays a generic drug company to end the litigation and delay launching its generic may violate the antitrust laws. Although the decision ended years of controversy over whether such settlements were subject to antitrust scrutiny, many issues remain unresolved concerning the lawfulness of these settlements. In particular, courts have struggled in assessing the legality of patent settlements between branded and generic drug manufacturers involving non-cash compensation or benefits. This article discusses one type of non-cash compensation that is ...

Looking For Venue In The Patently Right Places: A Parallel Study Of The Venue Act And Venue In Anda Litigation, Mengke Xing

San Diego Law Review

Like any other type of litigation, venue is often an important strategic decision for patent infringement litigants. Under the traditional nation-wide venue rule, a patent owner was able to sue a corporate defendant almost in every district in the country, giving rise to abusive forum shopping and the popularity of the Eastern District of Texas. Last year, the Supreme Court in TC Heartland dramatically changed the legal framework of venue in patent litigation, while leaving some issues unaddressed. After a discussion of the evolvement of venue laws and the significance of TC Heartland, this Comment focuses on the Venue Equity ...

The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman

Georgia State University Law Review

As this Article sets forth, once a computerized algorithm is used by the government, constitutional rights may attach. And, at the very least, those rights require that algorithms used by the government as evidence in criminal trials be made available—both to litigants and the public. Scholars have discussed how the government’s refusal to disclose such algorithms runs afoul of defendants’ constitutional rights, but few have considered the public’s interest in these algorithms—or the widespread impact that public disclosure and auditing could have on ensuring their quality.

This Article aims to add to that discussion by setting ...

Deploying The Secret Police: The Use Of Algorithms In The Criminal Justice System, Jessica Gabel Cino

Georgia State University Law Review

Algorithms saturate our lives today; from curated song lists to recommending “friends” and news feeds, they factor into some of the most human aspects of decision-making, tapping into preferences based on an ever-growing amount of data. Regardless of whether the algorithm pertains to routing you around traffic jams or finding your next dinner, there is little regulation and even less transparency regarding just how these algorithms work. Paralleling this societal adoption, the criminal justice system now employs algorithms in some of the most important aspects of investigation and decision-making.

The lack of oversight is abundantly apparent in the criminal justice ...

Taking It To The Limit: Shifting U.S. Antitrust Policy Toward Standards Development, Jorge L. Contreras

Utah Law Faculty Scholarship

In November 2017, U.S. Assistant Attorney General Makan Delrahim, chief of the Department of Justice (DOJ) Antitrust Division, gave a speech at University of Southern California provocatively entitled “Take it to the Limit: Respecting Innovation Incentives in the Application of Antitrust Law”. In this speech, Mr. Delrahim announced a new DOJ policy approach to the antitrust analysis of collaborative standard setting and standards-development organizations (SDOs) -- the trade associations and other groups in which industry participants cooperate to develop interoperability standards such as Wi-Fi, Bluetooth, 4G and 5G, USB and the like. He explained that the DOJ had “strayed too ...

University Of Nebraska-Lincoln Digitalcommons: Statistical Report, August 2018, Deeann Allison, Paul Royster, Sue A. Gardner, Margaret Mering, Linnea Fredrickson

Copyright, Fair Use, Scholarly Communication, etc.

To: Deeann Allison, Director, Media & Repository Services, UNL Libraries

I am pleased to transmit the following statistics report on the UNL DigitalCommons, http://digitalcommons.unl.edu

The DigitalCommons is the “institutional repository” for UNL. It’s function is to gather the intellectual output of the university for online public access. It was established in 2005, and now holds 99,000 papers, making it the 3rd largest in the United States, trailing only the University of California system (190,000) and the University of Michigan (120,000). It recently surpassed 50 million downloads, and is the nation’s current leader in that category. Alexa.com reports that the repository is the most visited subdomain of unl.edu, representing 15% to 18% of all internet traffic.

The following schedules are attached:

I. History of growth (13 years) Growth of contents has been steady at around 6,000 annually. Contents and downloads shown here are UNL free public access only; i.e. they do not include ProQuest’s collection of 14,000 UNL dissertations (which are free to this campus & subscribing institutions only). Download numbers reflect changing interactions with search engines.

II. Distribution of contents and usage across series (50) : This schedule lists the 50 most popular series, July 2015 – June 2018, by downloads, and then by number of papers and annualized average per paper. These 50 series represent 36% of the contents and 63% of the downloads. There were approximately 950 series overall, with 19,583,432 downloads over the period.

III. Downloads by other educational institutions (115) We are able to trace about 25% of downloads to a network. The following are the most frequently downloading networks and their types.

IV. Downloads by continent: July 2016‐‐June 2018

V. Downloads by country (28) Between July 1, 2015, and June 30, 2018, these 28 countries each received >0.5% of geolocated downloads. Note that 59% of downloads are international.

VI. Most popular paper by country (10)

The DigitalCommons platform is hosted and maintained by bepress in Berkeley, California; they were purchased last year by Elsevier. The repository is operated and administered locally by UNL Libraries faculty and staff: Paul Royster, Sue Gardner, Margaret Mering, and Linnea Fredrickson.

Harmonizing Cultural Ip Across Borders: Fashionable Bags & Ghanaian Adinkra Symbols, J. Janewa Osei-Tutu

J. Janewa Osei-Tutu

Global copyright and trademark laws protect symbols, names, and literary and artistic works. However, when their primary significance is cultural, because they are neither individual original works nor symbols that are used as commercial identifiers, intellectual property laws do not protect these symbols or artistic works. This is true, even if these goods are protected under national laws as part of that nation’s cultural heritage. Once these cultural goods cross borders, there is no international law that will enable the country from which these goods originate to assert its rights in other countries. This Article characterizes these cultural goods ...

Much Ado About Five Hundred Dollars: Why The Scc Should Overturn Rogers V Voltage, Colin Hyslop

Western Journal of Legal Studies

The FCA’s decision in Rogers Communications Inc v Voltage Pictures, LLC, et al has dramatic policy implications, despite being only a decision regarding $500 in costs. Voltage Pictures sought the identities of alleged copyright infringers from Rogers by moving for a Norwich Order and was able to convince the FCA to compel Rogers to supply this information for free, by exploiting the “notice and notice” regime. The FCA’s decision in Voltage was legally suspect and should be overturned when the case is heard by the SCC. This paper will argue that SCC must overturn this decision. The case ...

The Porous Court-Agency Border In Patent Law, Saurabh Vishnubhakat

Saurabh Vishnubhakat

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office ...

The (Re)Newed Barrier To Access To Medication: Data Exclusivity, Srividhya Ragavan

Srividhya Ragavan

This Article is set in the background of the consequences of the WTO’s prescriptions on patenting of life-saving medications which has largely contributed to the morphing of patents o n life-saving medication into a luxury. Remarkably, there has been a transformation of the role of patents in the context of pharmaceutical innovation into a strategic business tool leading to a larger interest in creation and sustenance of regulatory rights. The biggest global development in this area is an increased effort to strengthen exclusivity using regulatory protections for all chemicals, and even, biologics, involved in all stages of drug development ...

Harmonizing Cultural Ip Across Borders: Fashionable Bags & Ghanaian Adinkra Symbols, J. Janewa Osei-Tutu

Akron Law Review

Global copyright and trademark laws protect symbols, names, and literary and artistic works. However, when their primary significance is cultural, because they are neither individual original works nor symbols that are used as commercial identifiers, intellectual property laws do not protect these symbols or artistic works. This is true, even if these goods are protected under national laws as part of that nation’s cultural heritage. Once these cultural goods cross borders, there is no international law that will enable the country from which these goods originate to assert its rights in other countries. This Article characterizes these cultural goods ...

The (Re)Newed Barrier To Access To Medication: Data Exclusivity, Srividhya Ragavan

Akron Law Review

This Article is set in the background of the consequences of the WTO’s prescriptions on patenting of life-saving medications which has largely contributed to the morphing of patents o n life-saving medication into a luxury. Remarkably, there has been a transformation of the role of patents in the context of pharmaceutical innovation into a strategic business tool leading to a larger interest in creation and sustenance of regulatory rights. The biggest global development in this area is an increased effort to strengthen exclusivity using regulatory protections for all chemicals, and even, biologics, involved in all stages of drug development ...

Intellectual Property, Traditional Knowledge, And Traditional Cultural Expressions In Native American Tribal Codes, Dalindyebo Bafana Shabalala

Akron Law Review

Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in ...

The Lost Tort Of Moral Rights Invasion, Patrick R. Goold

Akron Law Review

Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted ...

The Porous Court-Agency Border In Patent Law, Saurabh Vishnubhakat

Akron Law Review

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office ...

Super Bowl I, Jazz Radio, And The Glass Menagerie: Copyright, Preservation, And Private Copies, R. Anthony Reese

Akron Law Review

Copyright law is often described as providing incentives to make and disseminate creative works. Copyright law should also seek to foster the preservation of creative works so that people can enjoy, use, study, critique, and build upon them long after they are first created. Traditionally, copyright law fostered preservation largely because most copyright owners principally exploited their works by making and distributing many tangible copies of those works. Those copies could end up in many different hands, and each copy could potentially survive into the future. Some kinds of works, though, were disseminated principally by performance, and as a result ...

Criminal Trademark Enforcement And The Problem Of Inevitable Creep, Mark P. Mckenna

Akron Law Review

This Article focuses on the federal Trademark Counterfeiting Act (TCA), the primary source of federal criminal trademark sanctions. That statute was intended to increase the penalties associated with the most egregious form of trademark infringement—use of an identical mark for goods identical to those for which the mark is registered and in a context in which the use is likely to deceive consumers about the actual source of the counterfeiter’s goods. The TCA was intended to ratchet up the penalties associated with counterfeiting, but only in cases involving particularly egregious conduct.

Several recent trends in the application of ...

On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr.

Glynn Lunney

No abstract provided.

No Security Through Obscurity: Changing Circumvention Law To Protect Our Democracy Against Cyberattacks, Andrew Moshirnia

Brooklyn Law Review

Cybersecurity is increasingly vital in a climate of unprecedented digital assaults against liberal democracy. Russian hackers have launched destabilizing cyberattacks targeting the United States’ energy grid, voting machines, and political campaigns. America's existing inadequate cyber defenses operate according to a simple assumption: hide the computer code that powers critical infrastructure so that America's enemies cannot exploit undiscovered weaknesses. Indeed, the intellectual property regime relies entirely on this belief, protecting those who own the rights in computer code by punishing those who might access and copy that code. This “security through obscurity” approach has failed. Rightsholders, on their own ...

Temporary Restraining Orders To Enforce Intellectual Property Rights At Trade Shows: An Empirical Study, Marketa Trimble

Brooklyn Law Review

Infringements of intellectual property (IP) rights by exhibitors at trade shows (also called trade fairs or exhibitions), such as infringements committed through exhibitions of or offers to sell infringing products, can be extremely damaging to IP right owners because of the wide exposure that trade shows provide for infringing IP; the promotion of the infringing IP and the contacts made by infringers at trade shows can facilitate further infringements after a trade show that can be very difficult for IP right owners to prevent. IP right owners therefore seek to obtain emergency injunctive relief to stop trade show infringements immediately ...